Berry Amendment

The Issue:

Rep. Robin Hayes (R-NC) sponsored the legislative provisions providing transparency and clarification that were included in the FY 2006 Defense Authorization Act, and has been a long-time supporter of these issues. Work continues to make sure these valuable changes are implemented faithfully. In addition, apparel and footwear contractors continue to express concerns over the manner in which contracts are awarded, which prevent adequate business planning. Separately, Hayes has reintroduced legislation, HR 917, to extend Berry Amendment protections to the Department of Homeland Security (DHS), which includes the Border Patrol, the Transportation Security Administration (TSA), and other agencies. The bill does not have a Senate sponsor yet, though there are a few interested candidates. In early May, the approved a DHS Authorization bill (HR 1684) containing a provision that would require uniforms, protective gear, badges and ID cards to be manufactured in the United States. That provision was included at the request of the House Homeland Security Committee staff and is identified with with Rep. Bob Etheridge (D-NC) who has also introduced a stand alone bill (HR 1686) with that same procurement requirement. Unfortunately, this language does not track with the Berry Amendment and therefore does not require inputs to be of U.S. origin. In addition, the language is not compliant with U.S. international trade obligations. Although Hayes tried to insert his language through a series of parliamentary moves, he was ultimately rebuffed on a vote of 217 to 199 (the voted needed to fail in order for the procedural tactic to succeed). A separate vote to strip the Etheridge language from the bill entirely also failed on a vote of 36 to 390. It remains to be seen if this language will survive or if the underling DHS Authorization bill will even be signed into law. Among other challenges, the Administration opposes the DHS bill, and has even cited opposition to the Etheridge language as one of the factors contributing to its adverse position.

AAFA on the Issue:

AAFA strongly supports the preservation of the Berry Amendment as a national security issue and as a vital way to maintain a warm industrial base for the national defense. AAFA worked closely with Representative Hayes’ staff to ensure that the new legislation introduced on the U.S. Department of Homeland Security was compliant with U.S. international trade obligations while providing new opportunities for government contractors. AAFA does not support the Etheridge language. AAFA will continue to monitor and guard against any efforts to dilute or weaken Deprtment of Defense (DoD) Berry protections and will work the DHS issue to advance AAFA member interests.

The Latest News:

01.14.08

House Democratic Leaders plan to bring the 2008 National Defense Authorization bill back up for a vote this week to override a Presidential veto of the legislation. President Bush refused to sign the legislation due to a provision that was included in the final bill that would have allowed victims of state-sponsored terrorism to sue foreign governments in U.S. courts.

At this point, it seems likely that the override vote will not garner the 2/3 majority needed to pass. It is unclear if the Senate intends on following suit with an override vote of its own.

12.10.07
On December 4, Deputy Assistant Secretary of Commerce for Textiles and Apparel, Matt Priest, announced the creation of a new website to provide U.S. textile and apparel manufacturers an easier way to access information on the Berry Amendment. AAFA wholeheartedly supports the Berry Amendment, which requires the Department of Defense to buy domestically produced apparel and textiles. Defense contracts are vital to the domestic industry, which produces innovative products including uniforms, tents and boots for our nation’s military services.

04.12.07
The House Homeland Security (DHS) Committee approved an authorization bill for the Department of Homeland Security (HR 1684) during a mark-up on March 28. As part of a debate that touched on security, border patrol, targeting systems and funding, the Committee-approved bill contains a provision with restrictions (for the DHS) similar to what is provided for in the Berry Amendment (with respect to the DoD). These provisions were drawn from a bill, H.R. 1686, sponsored by Congressman Bob Etheridge (D-NC), which would require uniforms, protective gear, badges or other insignia and identification cards to be made in the US. The amendment does not require that inputs be of US origin and does not include provisions that allow the United States to honor its WTO obligations or the national security component and thus would likely be opposed by the Administration.
AAFA has supported HR 917, the Berry Amendment Extension Act, sponsored by Congressman Robin Hayes (R-NC) that includes the WTO compliant provisions and actually extends the current Berry Amendment to DHS and particularly the Transportation Security Administration. By using the actual language from the current Berry Amendment as it applies to DOD, the Hayes language ensures that textile inputs are included in the requirements, which is a volatile part of the apparel and footwear supply chain. Although it remains unclear if the Committee approved authorization bill will be signed into law – the Committee has thus far failed to see an authorization bill enacted - AAFA will work with the DHS committee and Congressman Etheridge to address the issues currently lacking from the authorization bill as it moves through the process.

As part of the implementation of the changes to the Berry Amendment included in the FY 2006 Defense Authorization Act, AAFA submitted comments on March 23 in support of the foreign source restriction expansion. Specifically, this provision was prompted due to a concern that certain inputs like leather were not uniformly interpreted as being covered by the Berry Amendment due to the fact that they are not a textile input. The provision implemented under this regulation implementation includes a clarification to state that materials and components thereof would be covered. AAFA also encouraged the implementation of transparency provisions also included in the FY 2006 Authorization bill and a permanent posting of Berry waivers on FedBizOps or the Defense Supply Center in Philadelphia (DSCP) website.